Supreme Court upholds infanticide law in Borowiec ruling

In its first-ever ruling on Canada’s infanticide law, the Supreme Court has unanimously opted to uphold the law by dismissing an appeal in Queen V. Borowiec — upholding the verdict in a tragic case which saw two newborns die after being abandoned in a dumpster.

Infanticide is a form of culpable homicide that applies to a narrow set of circumstances where a mother – by willful act or omission – kills her newborn child while her mind is considered “disturbed” by the effects of giving birth.

Had the court ruled otherwise, it would have had a major impact on the severity of the penalties for women who kill newborns.

Meredith Borowiec confessed to throwing her newborns in a dumpster outside her home in 2008, 2009 and 2010, respectively. Two died while the third was rescued and later adopted.

Borowiec was charged with second degree murder for the other infants. A trial judge, followed by a 2-1 decision by Alberta’s Court of Appeal in July 2015, found her guilty of the lesser charge of infanticide, and gave her 18 months. She’s already served the time for that sentence.

Today’s Supreme Court ruling stems from an appeal launched by the Alberta Crown, which wanted Borowiec retried for second degree murder.

The Crown argued that the infanticide law is “vague, outdated and rife with problems.”

“A female person commits infanticide when by a willful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.”

The wording in the last line – her mind is then disturbed – has been subjected to very little jurisprudence in Canada; it was the main legal issue in the Supreme Court’s decision to throw out the appeal.

Justice Cromwell wrote in Thursday’s ruling that Parliament, when it passed the law, did not intend to restrict the concept of a “disturbed mind” to those who have a “substantial psychological problem,” and that the disturbance “need not constitute a defined mental or psychological condition or a mental illness,” nor a mental disorder as defined in Section 16 of the Criminal Code.

Originally, the infanticide provisions were adopted from a similar UK law from the 1920s, introduced to “remedy the fact that judges and juries were reticent to convict a mother who killed her newborn of murder since she necessarily faced the death penalty,” according to the ruling.

“The conditions in which infanticide arose drew much public sympathy. It was thought to be a crime mostly committed by ‘illegitimate mothers’ trying to hide their shame, a motive which the general opinion thought lessened the heinousness of the crime.”

It was further noted that women who committed infanticide often faced “difficult economic circumstances.”

Those same concerns over sympathetic juries refusing to convict mothers who killed their newborns were motivating factors for introducing it the Canadian Criminal Code in 1948.

The language was originally drafted to be broad intentionally, but narrow enough to distinguish the condition from “insanity proper” and to “mental derangement produced by drunkenness.”